A poinder of household goods, in prejudice of landlord's hypothec, may be incarcerated till he replace them.
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David Jackson sadler in Edinburgh being creditor to Helen Ready, a poor woman there, poinded her household goods; when compearance was made for William Fala taylor there, setter of the house, who insisted to detain the furniture for his hypothec, notwithstanding whereof the poinding proceeded and was compleated.
Fala gave in a complaint to the Sheriff, who found, ‘that the defenders could not poind the goods and effects out of the house libelled, in prejudice of the pursuer's right of hypothec, unless actual payment had been made of the rent for which the goods stood hypothecated, or the same told down; and therefore found the defender liable instantly to restore the goods poinded, or make payment to the pursuer of the year's rent; and granted warrant to apprehend and incarcerate the defender until he should obtemper the sentence.’
Jackson being imprisoned, pursued the Sheriff and private party; and an enquiry being made into the practice of the Sheriff and Town Courts, and certificates returned by the respective clerks, the Lord Ordinary, 17th July 1744, ‘having considered the certificates produced by Thomas Belshes, and George Lindsay, the one bearing, that when a complaint is entered before the Sheriffs of Edinburgh against any person for carrying off goods, in prejudice of the landlord's hypothec, the Court is always in use to grant summar warrant for replacing the goods, or paying the rent; and the other certifying, that it is the practice of the Magistrates of Edinburgh, when any person is convened before them for carrying off goods in prejudice of the landlord's hypothec, upon proper evidence thereof, to grant summar warrant for replacing the goods in the house, or payment of the rent due, assoilzied the defender.
On a bill and answers, the Lords adhered.
Act. H. Home.Alt. W. Grant.Clerk, Forbes.
Fol. Dic. v. 3. p. 292. D. Falconer, v. 1. p. 115.
